The Year of OCBA

The good news, as of this writing, is that I finally got out of the sling and out from sleeping in the recliner. The recliner still sits in a corner of my home as I’m unable to lift anything and thus unable to get it out of my house. I never knew a piece of furniture could be such a hated yet necessary item. So with that new perspective, we enter August 2018. We have a lot of rain and sixty to eighty degree temperatures. This seems really unusual for summer in Oklahoma, but it has been an unusual year. This is the Chinese Year of the Dog no less. That explains a lot.
And, August brings us more change at the OCBA than just in temperatures. Yes some of us await the Saturday pigskin kickoffs while others realize that the jury trial season is upon us. This week is our final Executive Committee meeting and Board meeting with this group. We welcome new board members at our final board meeting. At OCBA, this is the time of change in leadership. OCBA President David Cheek will finish his term and President-Elect Judge Sheila Stinson will take over your OCBA in September. President Cheek has done a fantastic job of expanding our thinking on OCBA membership, diversity outreach and technology possibilities for the courthouse. His leadership year has been a great chapter in the OCBA book. David, thanks for your years of service to the profession.
Your next OCBA President is Special Judge Sheila Stinson, who will be a fantastic leader of your OCBA. I can’t wait to see what she has in store for the board and membership. I noted while in Las Vegas last February that this is the Chinese Year of the Dog. Interestingly, when my turn as president of your OCBA comes in September of 2019, we will be in the Year of the Pig and I will finish in the Year of the Rat. I’m a little concerned about what that might imply. However, regardless of what I do during my tenure, being sandwiched between Judge Stinson and Judge Don Andrews, who will be the next OCBA Vice-President and succeed me as President, I really can’t mess up too much that they can’t easily fix.
I spent some time in prior Briefcase articles recently discussing the dedication to our profession of board members, past-presidents, the demographics of your OCBA and the incredible professionals on display at Law Day and at the OCBA Summer Annual Awards Luncheon. I would be remiss at not mentioning the incredible staff of your OCBA. In fact, before taking on the Vice-Presidency, I extracted a promise from Executive Director, Debbie Gorden, that she would remain onboard for at least another three years to cover my term. Again, another safeguard against my glitches whether unintentional or intentional. After passing the bar in 1986 and becoming active in the young lawyer’s committee, I met Debbie Gorden in 1987 when she was an assistant at your OCBA. Working with then Executive Director Bobby Knapp, Debbie was energetic, organized and hard-working. She has continued being a significant presence in the OCBA, taking over as Executive Director in June of 2005. I worked with Debbie during my first go-round on the OCBA Board during the early to mid-90s. Debbie is the foundation that holds your OCBA steady. If you don’t know her, you need to get by the office and meet her.
Pam Bennett, who runs the Attorney Placement Service, started with your OCBA in June of 1997. I laugh with these ladies as we talk about when our kids were little. Pam Bennett is a force in the legal placement community providing annual salary survey information for non-professional positions and providing placement of everything from receptionists to office managers in addition to attorneys. This is an incredible service and revenue generator for your OCBA. Connie Resar joined the OCBA and you will know her from the front desk and her voice from the phone, starting in 2002. Connie is the glue that makes everything hold together as she makes sure that our dues statements are sent out, dues received and deposited, and that your courthouse proximity ID works. Connie keeps everything going, makes sure everything, including this Briefcase, is mailed out and basically insures that the clocks and trains are on time.
If you have not met the terrific trio, get by your OCBA office and be social. This trio is the true heart of the OCBA that continues consistent functioning, as board members and leadership come and go. You can count your OCBA among the most successful bar associations in the U.S. We have great social gatherings, community service, CLEs and professional development. My goals for OCBA tend to gravitate toward the professional development side but that may be because of my recent stent in a recliner on pain meds in front of a TV. I did remember two quotes that may or may not guide my future tenure meeting your OCBA from my time in front of the TV1:
Well I believe in truth…but I’m also a big fan of justice. …
How many of you are there?
Not enough.

So, join me in strengthening your OCBA. We never had too many attorneys involved and well, don’t we all believe in truth and are fans of justice? Every practicing lawyer in Oklahoma County should be a member of the OCBA. #WhyNot

End Notes:
1. Justice League (2017)

Byline: Michael W. Brewer is an attorney, founder, and partner of Hiltgen & Brewer, PC in Oklahoma City, Oklahoma. To contact Mike, email mbrewer@hbokc.law, call (405) 605-9000 or tweet him at @attymikeb. For more information, please visit http://www.hbokc.law.

MUSINGS FROM THE RECLINER

This Briefcase article began in May with me researching legal decisions on whether lawyers should have smart devices such as those sold by Google and Amazon in their offices because those devices are on listening to every conversation and phone call you have with clients, opposing counsel and others. This could include private confidential information, attorney strategy, HIPAA protected information and private identifier information. Lawyers must be more aware today of protecting and securing this information and their client information than ever before. However, I was sidetracked by multiple items and life.
First, your OCBA executive committee met with 35 past presidents of the OCBA. If you saw the Briefcase last month, you saw the photo. Retired judges, active judges, law firm partners, solo practitioners, law school deans and others gathered because they are interested in supporting and influencing the local Bar and especially young lawyers. Also, free food and cocktails were provided. Many thanks to organizer, Court of Appeals Judge Barbara Swinton, for this resounding success. The exchange of thoughts, ideas and future planning was discussed. Next was the Law Day Luncheon attended by 380 lawyers with awards given for several professional categories and keynote by OU Law Dean, Joe Harroz. Some common threads run through many of these discussions and presentations. Those being a lawyer’s duty to be better and do better things and on the flipside the growing lack of civility on our profession.
Considering that my term as OCBA President begins one and a half years from now, I started to write down some notes and plans from things I heard at these two events. I was next sidelined by a shoulder surgery and related anesthesia reaction that put me in a recliner for an extended period of time. To begin with, we don’t own a recliner. My wife had banned recliners despite my statements about how nice these new man cave game room recliners appeared with built-in massage, heat, USB ports and multiple cup holders. I was also told that people recovering from shoulder surgery had to sleep in recliners. Unfortunately, this was proven to be a true statement. So, we went to my mother-in-law’s house and borrowed a recliner. (note the photo above is of a favorite historical chair belonging to one Archie Bunker). I got as far as writing down notes for a plan and determining some metrics for your current County Bar Board. Here is the rough board make up:
2017-18 Board Stats
Age
30-40 6 19%
40-50 11 36%
50-60 8 26%
60+ 6 19%

Gender
Male 21 68%
Female 10 32%

Ethnicity
White 25 81%
Of Color 6 19%

Other
Lg. Firm 8 25%
Sm. Firm 12 39%
Judges 7 23%
Gov/Corp 4 13%

Judges from the Ct. of Civil Appeals, Dist. Ct. Judges, and Special Judges

It is pretty incredible to me that in this busy merry-go-round world of practicing law that this Board, this executive committee and 35 past presidents would gather to work out ways to help improve our profession and provide all lawyers, not just young lawyers, with great mentoring, support and a social justice outreach. The current board looks pretty much like the Bar. So, I have less than 2 years to work out the path for how those non-members in our local Bar need to become members. In the meantime, I suspect that Amazon and Google will be replaced by some other thorny client confidence problem that future Briefcase contributors can write op-eds about.
Back to the recliner, which happens to be placed in front of the TV. When you are not totally consumed with practicing law, managing a law firm and writing down your billable time, it’s amazing what is going on in the world. Amazing and tragic at the same time. Significantly, NBA referees are not any better in the conference playoffs’ 6th or 7th games than they were during the season. Then came NBA championship game 1 where they really showed out. I also watched Women’s College Softball. I watched Men’s College Golf. Then there was PGA golf, car racing, a horse race and NCAA Baseball. No MLB for me.
But, I learned that Las Vegas has a hockey team that I didn’t know existed and they are playing for the Stanley Cup. I watched a night of all local television stations following the Lake Hefner restaurant shooting and easily determined that that coverage was worse than any severe thunderstorm or tornado coverage they regularly produce. The news provided coverage of on-again-off-again talks with North Korea, Italy’s economy take the entire global economy down, and I learned that there was a new highly rated Roseanne that was already cancelled. Having not watched Roseanne the first time around, not aware that Roseanne was back, and you can imagine my surprise that ABC’s top-rated show, Roseanne was already cancelled. Then I read her stupid tweet. Apparently, Twitter serves the ultimate purpose of providing an outlet for stupid and shameful comments.
It’s also interesting to be in a recliner in front of the TV during political commercial season. If you ever were concerned about the public’s perception of lawyers, just watch current advertising of politicians who also happen to be attorneys. Suddenly it came to me that if you spent all your time observing the problems and solutions of our culture, society and the world as depicted on TV, you could certainly have a biased perspective that could cause your glass-mostly-empty outlook to be hypercritical of anything positive being advanced. Now understand this bias is evenly split 40-40.
But this television focused worldview comes crashing down when compared to what I had recently witnessed from OCBA lawyer leaders. Then I hit upon it – the reason so many lawyers are willing to volunteer their time and energy to support and energize our profession was obvious. The people who take time to work for the sake of the whole and overall good, find that the fabric of our profession and psychological health of its members (including themselves), is improved. This satisfaction comes when people work for the advancement of civil justice as well as social justice. If your mindset is limited to only your own advancement and doing things solely for the dollar, then you’ll never know that freedom and peace. Basically, you’ve got to get out of the recliner and away from the TV to do some good. Get involved and invite a non-member to get involved. Until then I’m searching through seasons 1-7 of Game of Thrones – “You know nothing, Jon Snow.”

Why Join?

As I put fingers to keyboard for this month’s op-ed installment for the Briefcase my fingers instinctively went to the keys N-B-A-r-e-f-s. I pulled back, aghast at the social media hack that I was transforming into. Was it the Facebook/Amazon algorithms or all the fake news that was affecting me? No must be Russian interference then. I mean seriously these guys get paid for that. So, I move on to a more pressing question, why don’t more Oklahoma County lawyers join the OCBA. Maybe they don’t know what they are missing, I pondered: great social events like bowling, chili cook offs and golf; excellent CLE and opportunities to meet other lawyers and judges; giving back to the community; bypassing security line at the courthouse, access to nonstop elevator, being mentored, mentoring and just plain fun times with their peers. Seems like when I was a young lawyer everyone joined. So here are some short attorney profiles of other lawyers who belong to the OCBA. Maybe something here will ring true to you. Share this with an attorney friend who is not a member. If you aren’t a member, contact the OCBA office and join.
Special Judge for the District Court of Oklahoma County, Geary L. Walke (he got me into this writing mess):
1. Product of Del City. 25 years pretending to be a trial lawyer. 17 years as the lowest judge on the totem pole.
2. I joined OCBA after being sworn in, hoping it would help establish my bona fides with the public. After about 15 or 20 years I was personally invited by (then Director) Bobby Knapp to be on a committee. I met some wonderful lawyers with passions for being good lawyers. I wanted to be like them.
3. I knew if I was able to imitate those really good lawyers with more experience, more knowledge and better paying clients, I could eventually improve my lot.
4. I’ve learned to love the OCBA monthly newspaper: The Briefcase. I love the “non-legal” things that lawyers write about: ethics, business and socializing. Lawyers are always interesting if you don’t have to rebut what they say.
5. Never stop reaching out. Invite a friend to an event, a luncheon, a CLE or to work on a committee. As Montagne said (paraphrasing from a Biblical passage): The only way to have a friend is to be a friend.

Special Judge and President Elect of the OCBA, Sheila Stinson (I work for her):
Who
A wife, mom, friend and judge, proud native of Boise City, a loyal alum of UCO and OU Law. Former civil litigator and business owner. In July 2017, I was sworn in as a special judge in Oklahoma County.

How got involved
My father-in-law, David Stinson, refers to people like me as “joiners”. I was born into a family of joiners. My parents have been Rotarians most my life. In law school, I found a fellow joiner in Celeste Johnson. After we both graduated law school, she was told she needed to go to a meeting at a place called the Oklahoma County Bar Association to meet other young lawyers, so she called to see if I’d go with her. That meeting was the OCBA Young Lawyers Division Board of Directors. We joined. We stayed.
Why stayed/ involved
Through the YLD Board, I discovered and then joined some other committees such as the Bench and Bar Committee, the Work/Life Balance Committee and the Social Committee. After serving on the YLD Board for 4-5 years, the nominating committee asked if I would serve as the Law Library Trustee. Some say one way to get people to stay in an organization is to ask them to do something. It worked. I was asked to serve on the Law Library Board and absolutely loved my time on it.
Project I’m passionate about
I enjoy so many of the OCBA’s events and projects, but the one activity I never miss is the Bench and Bar Conference. In addition to some great CLE and scenic views, the conference is always a great weekend to meet new friends, spend time with old friends and interact with other practitioners and members of the judiciary.
What benefit for new members
I passionately believe that our association’s purpose is to serve its members. Through that purpose, the association helps those members to serve their clients and their community. I am a member because it has changed my career and my life. For an attorney who wanted to meet other attorneys and judges and find a way to volunteer in our community, the OCBA was a perfect fit for me and it hopefully is for new members as well.
Attorney, Robert Sheets (this guy is Voices for Children):
1. Born and raised in St. Louis, Missouri, he makes his home in Northwest Oklahoma City, with his wife and children. In his free time, he enjoys being with his family, attending baseball games, traveling and volunteering at his church. A Firm founder of Phillips Murrah law firm, he is a Director in the Commercial Litigation Practice Group. He received the Outstanding Law Review Alumni Award from Oklahoma City University School of Law in 2007, The Journal Record’s Leadership in Law Award in 2008 and The Alma Wilson Award from the Oklahoma Bar Association in 2011.

2. I joined as a young lawyer so I could get to know the lawyers in the Oklahoma County area. I went to OCU law, but I was from St. Louis and I thought it was necessary to know who my fellow bar members were.
3. I enjoyed the chance to meet the attorneys. Also, there were service opportunities, like participating in law day and chairing the Voices of Children committee which runs the reading buddies that read to pre-school children ounce a month at Lee Elementary School and the Carver Mark Twain Head Start. Just reading to preschool age children helps them with language and makes them want to read which will help them throughout their lives.
4. Community service. The law has been very good to me and the least I can do is give back some of my time to the community.
5. OCBA membership can give you recognition in the legal community. I receive many referrals of clients from lawyers I know. I credit OCBA for helping me to get to know my fellow attorneys, since I was an outsider 40 years ago. Knowing you fellow attorneys can help in many ways. We are in an adversarial business. Just knowing your opposing attorney can keep the relationship civil.

I’m Still Right!

Recently, I received a link to a New York Times op-ed piece by Nicholas Kristoff. I regularly skim the NYT and read deeper when something catches my eye, but didn’t remember reading this short piece entitled “You’re Wrong! I’m Right”.N1. In this op-ed Kristoff discusses a problem that we now encounter daily- the expansion of self-ideological supporting social media called “The Daily Me”. Significantly, Kristoff ends with these sage words “It should be possible both to believe deeply in the rightness of one’s own cause and to hear out the other side. Civility is not a sign of weakness, but of civilization.”N1.
While these words should receive consideration among the populace, they should more so find open minds among our legal peers. Isn’t this what experience and mentors have taught attorneys for years. You have to know the strategy and evidence of your adversary in order to rebut, cross and refute their case. It seems like litigation 101 or basic legal strategy. However, in this cultural swamp that we live, those foundational considerations seem to get bypassed by our profession more and more often. The situation then devolves to a lack of simple courtesies or professionalism. Most of the time we act and react propped up by “The Daily Me” machine of this is how you even the playing field, this is how you maximize settlements or judgments, or this is retribution for some perceived game playing. Does anyone really believe that utilizing Reptile or Rambo tactics will not result in some sort of response on an equal footing? Does experience tell us that use of hard ball tactics only results in increased positive results? But if such thought is ok for non-attorneys, then we as a profession should be able to go about our business in much the same way.
Do terms like fascist, libtard and snowflake translate in our litigation world to plaintiffs and defendants alike? Well they shouldn’t given our code of professional ethics. But they seem to, as similar conduct wrapped in strategies termed Reptile or Rambo are worked by plaintiff and defense counsel alike. We believe it is ok, because courts allow discovery conduct at one level and expect trial behavior to be something else. However, appellate opinions are piling up sending cases back for new trials because of prejudicial and abusive attorney conduct. So, let’s return to the one truth we can all agree on with an illustrative example-NBA referees are the worst.
One fan observes a trip down the court where the defending player has hands on the offensive player using one hand to hold down the shooting arm and the other to tug on the jersey. The referee chooses not to blow his whistle allowing this aggressive style of defensive play. The fan comments that is a fair ruling because otherwise the referee would have to blow his whistle on every play. The fan of the other team is screaming “Hey Ref You Suck” at the top of his or her lungs. On the next play back up the court, the player who was previously held makes a play on the ball along with the previously holding player and both of their active moves result in a bump. The referee chooses to blow a whistle on this play against the previously held player. The one fan observing this comments that was a good call because it was obvious retaliation for the last trip down the court. The other fan is still screaming “Hey Ref You Suck” even more loudly now.

Can both fans be correct? Did the players really do anything wrong? Since the referee only penalized the one, maybe only one did wrong. While this illustrates my point about NBA referees, we may soon know the answer to who is worse, with an April 1 deadline approaching for the Oklahoma legislature. Consider that civilized debate really is good for society and for our profession. Knowing your own weaknesses and your opponents’ strong points can only help improve your strategy and your mental health. On March 14th enjoy some Pie! #Whynot!

End Note:
1. https://www.nytimes.com/2018/02/17/opinion/sunday/liberal-conservative-divide.html; N. Kristof

2017 In Review

So this article was teed up for publication in the January edition of the local bar newsletter(OCBA Briefcase) but because of out of state travels, flu, deadlines, etc, I didn’t get it out in time. This time last year, I was writing about the benefits of belonging to your local bar association. A very upbeat topic in comparison to reviewing a prior year’s noteworthy events. Now that we are seven weeks into 2018 I look at this blog and think, “wow I need to sound more positive.” And maybe that should be our resolution for this year but even more so setting a goal for living not in the past but with our best efforts to be our best self, better our profession and provide for our families sounds really good. So without further explanation lets look at 2017 .

YEAR IN REVIEW – 2017: THE YEAR THAT KEEPS ON GIVING
It is hard to believe we are in February 2018 already, but before we completely turn our backs on 2017, we should look at the year in review. You may, in a contemplative moment, consider the new year resolutions that were made, met or left unsatisfied in comparison to past resolutions and current resolutions. Very difficult to not get political but I try – no really I try.
I have a faint memory of thinking no year could be as bad as 2016 and I cannot wait for 2017 to get here. On the other hand, 2016 was a great year for the stock market but there are other more important concerns for reviewing a year. Then, there was 2017 and I could not wait for 2018. It might be that for 2017 we should just use one word to describe it – SURVIVAL. Let’s look at why.
January: Presidential Inauguration, Hamilton, Dear Evan Hansen, a Women’s march wearing “indescribable body part hats”, Neil Gorsuch nominated to the Supreme Court, and everything Russian. Not too awful a start?
February: Fake news becomes a thing. Patriots win the Super Bowl. Academy Awards goof when a CPA firm gives wrong winner. North Korea launches a missile. Adele wins again with one of her trademark tunes. Some of this entertainment stuff is depressing.
March: More fake news and Russia. For some reason I have no interest in March Madness.
April: The sexual harassment avalanche begins with Bill O’Reilly at Fox News. Note to self – never fly United Airlines unless you have to. Cannot wait for the fall and college football. NBA refs are definitely the worst refs in any sport.
May: FBI Director fired. More Russia. Special counsel hired to investigate Russia or White House, not sure which or in what order. First news reporter body slammed by candidate. Evidence that journalist have same level of popularity as NBA referees and lawyers. State Legislature has no budget for the State of Oklahoma.
June: I was sworn in as a member of the Bar of the United States Supreme Court in Washington, DC. Meet RGB. Yay! Amazon purchases Whole Foods, is building a distribution center in Oklahoma City and will be able to deliver food to your door on the same day thereby putting out of business all other brick and mortar grocery retailers. Facebook reaches 2 billion users, most of which make political statements on Facebook. Judicial Nominating Committee remains intact despite Legislative threats-still no budget. Does Russia own Amazon or Facebook? Big 3 assembled for Thunder run at Warriors and Rockets! Presti is a genius, give him the State budget to fix. Lincoln Riley Era begins!
July: Speaking of social media, the new President uses it often. Most of the White House staff that began in January has now been replaced. O.J. Simpson is granted parole.
August: Sports Illustrated selects an unproven team to win the Big 12 Football Championship and play in the College Football Final Four, snubbing my alma mater. I am not bitter. Monuments of Confederate Generals and politicians are being removed all over the U.S. Charlottesville, VA occurs. People continue to amaze with their lack of intelligence. ESPN makes stupid decisions after this, including allowing one on air former player to choose Baylor as the Big 12 Champs. Berkeley and Oakland are in anarchy stages. North Korea shoots more missiles. Despite multiple Constitutional challenges the AWCA remains in place. Still no state budget. Hurricane Harvey. Total eclipse! At least it is time for football!
September: More North Korean missiles. China building islands to claim expanded ocean boundaries. Massive data breaches occurring everywhere. Russia or China to blame? Clinton tell all book hits the shelves. We voters were duped. NFL loses half its audience as the National Anthem issue raises its head. Stand or kneel? Plant the flag gate. Hurricane Irma, hurricane Jose and hurricane Maria(I think they ran out of Hurricane names with many more making their presence known). Central Mexico earthquake. On the bright side the number of Oklahoma earthquakes is at a 5 year low.
October: Sooners beat Texas in the Cotton Bowl. Hollywood unravels with a revealing of the sexual assault list, #metoo begins. Catalonia leaves Spain much like Britain left the EU. Get dissed at handshake and grab body part gate. At least he wasn’t wearing a body part hat and marching in the street. What is a Bitcoin and can you hold it. Ask Russia during the investigation. Hurricane Nate. New Star Wars movie opens! To no one’s surprise Rey is the Last Jedi.
November: More North Korean missiles. New iPhone launch- ho hum. Alabama escapes national disgrace in Senate race. NBA refs still suck, maybe worse than 2016. Iran and Iraq earthquake. Sadly, Napa burns in wild fires. Mud slides to follow for California. This Big 3 thing is questionable. Still no State budget. Bedlam: 88-18-7
December: Sooners win Big 12 again! Sooners go to CFP and Rose Bowl. Thankfully that happens in 2018 and I do not have to report the result here. Everything was great right up until the squib kick. Still struggling with Big 3. Wasn’t defense a Thunder thing? Why can’t millionaire ballers make free throws? Senators and Congressmen admitting and denying harassment charges resign. State budget deal so bad that Governor vetoes it. On the National scene Income Tax Reform progresses despite male congressional resignations. Largest number of persons to sign up for Obama Care in any given year. On the JNC doesn’t work let’s scrap it front, I’m happy to report that there were numerous District Judges, Appellate Judges, a Court of Criminal Appeals Justice and a Supreme Court Justice appointed in 2017- 11 total. Yes, it sounds like we need our legislature to fix that. Reports that number of vinyl music sold is at all time high- China or Russia? Big 12 basketball refs are worse than NBA basketball refs. The NBA 2 min report is as worthless as our legislature. After last 8 years of steadily increasing stock market and last two blockbuster years of increases this market must correct or profit take or something at some point. When do I sell? When do I get off this rocket? Then how do I get back in? How do we keep electing any/all of these legislators? What body part hats do they wear in marches in North Korea? So many questions to ponder for December.
Thankfully, 2017 came to a close.

After reviewing this I’m not sure what more I could do but rank events in descending order which may be more depressing than an Adele song. But rather than depress myself that way, I’ll just watch one of the thousand slasher movies from 2017. Let’s put the past behind us and move into the new year full tilt. Out with the old and Cheers to 2018, may it be better than what came before – in a good way! #Whynot!

WHY NOT? INDEED!

If you have been following my Briefcase Op/Eds or the Open and Obvious blog, you may recall that in March of 2017 I penned an installment entitled MY OCBA IS ALREADY GREAT!. If you choose, you can find that on the OCBA Briefcase archive or on the Open and Obvious blog site at https://openobvious.wordpress.com/. The reason for this reference is that County Bar President David Cheek has asked your County Bar Board two questions at the recent board meeting. The first is why do you belong to the OCBA and the second is why do others not belong to the OCBA. These are great questions for every member. Back in March I tried to point out in a succinct manner all the great benefits of OCBA membership including, but not limited to, mentoring, social interaction with Judges and other lawyers giving back to the profession, proximity card courthouse access, CLE and being part of a social justice and community service initiative of the County Bar. Apparently, this article did little to motivate an increase in membership. My pen/keyboard now meet reality and it begs the question, WHY NOT?
I realize that the likelihood of a non-member reading publication this is slim, so I am relying on you members to circulate the Briefcase to non-member lawyers you know. Better yet, ask them why they do not belong to the OCBA and let the OCBA know what we can do to increase membership in your professional association. First off, I am not listening to any complaints that County Bar dues are too expensive. The Oklahoma County Bar dues rate has not been increased in forever and is probably the cheapest bar membership you will ever have, certainly much cheaper than your gym membership that if you are like me you do not use. Save your email or phone call if that is your beef.
Moving on, the demographics of non-membership are hard to pin down. Many young lawyers straight out of law school and passing the bar exam get involved in Young Lawyer’s Committees of our Bar and others. These always seem to be a draw as these groups are both social and usually have a community service/social justice return involved. Another big hint, new admittee membership is free. From there, the Young Lawyers jump into regular Bar service mostly because they are forced out by age. Then the picture gets murky.
Interest in belonging seems to wane across all age groups of attorneys. I have already listed some really good reasons and benefits of OCBA membership. Tell your law partners, colleagues and other attorneys that you know about the OCBA. Encourage others to join. Take an active part in OCBA events, CLEs and social gatherings. Enhance your practice and work life satisfaction through OCBA membership. Inform your board of some tasks or perks to consider for the future mix of OCBA membership benefits. Share your Briefcase or blog or the Open and Obvious blog with others. It is not just about dues, it is about professionalism. I look forward to hearing from you, but while I am waiting, consider the following.
This discussion lead me to the top 10 Why Nots of October 2017 (most difficult to not be political or cynical here):
1. Why Not have fast access to the courthouse with a County Bar proximity card
2. Why Not socialize with other lawyers at the OCBA golf tournament, chili cook off, or Holiday Reception
3. Why Not meet Judges at the Beach and Bar Conference
4. Why Not get inexpensive content filled CLE at the OCBA
5. Why Not get involved in community service through any of the OCBA projects
6. Why Not join and encourage all Oklahoma County lawyers to join your OCBA
7. Why Not do something nice for a stranger
8. Why Not treat each other civilly in all things
9. Why Not be the best you can be; and
10. Why not the Brodie forever!

DOES THE LAWYER MAKE A DIFFERENCE?

Typically, I address lawyers making a difference in their community, our profession, and among family and friends. Today, I’m going to take a different look from the perspective of litigation outcomes. This discussion was prompted by an article I ran across online in Slate entitled, Do Court Room Lawyers Make a Difference? The premise of that article was a pair of well-known judges debating the importance of attorneys in trial outcomes. The article began with a statement:
Slate is running a series of monthly dialogues between two of the nations’ most esteemed jurists, Richard A. Posner and Jed S. Rackoff. These conversations are moderated by Joel Cohen author of the book Blindfolds Off: Judges on How They Decide.
This discussion is one near and dear to my heart. I was not surprised that these two distinguished jurists reached the conclusion that case results stand on their facts and not upon a particular lawyer’s skills. Please read that discussion as I use it only for an introduction to my topic, which I’m sure will lead to more discussion among lawyers. To be fair, the discussion seems to focus on criminal cases more than civil.
Most trial lawyers I know have a little bit of ego. Seemingly, the more successful the lawyer, the larger the ego. I think many if polled, would disagree with those judges’ view of the effect of lawyers on a case result. Also, these judges did say that in a close case the skill of a lawyer could make a difference. I read with great interest that the average law firm partner now charges well over $500 per hour. I also read an article in the local newspaper quoting an Oklahoma City law firm partner’s rates at $800 per hour to represent a local independent trust authority. This information immediately sent me back to renegotiating fees with clients supporting those requests with claims of superior lawyering skills.
Not surprisingly, those judges believe that the judge has a big role in the jury trial. I was brought along in my practice with the thought that the judges were the unbiased protectors of the law, juries, and justice. Experience, none the less, tells me that some judges believe they have to level the playing field or allow all sorts of advocacy (skilled or not) in order to give the parties equal opportunity for justice to be done. Somehow, that does not square with the idea that the lawyer’s relative skill set is unimportant in more than 90% of results (the not close cases). Moreover, most lawyers I know that do marketing are selling themselves, their trial record, and their skill set to potential clients. A common belief among non-lawyers is that the party with the deepest pockets and most expensive law firm can win or at least delay a negative outcome. Also, the premise of the Slate blog installment seems to fly in the face of those who pay money for titles such as “Best”, “Super”, “Superior Rated”, etc. I regularly hear on the local radio and see on TV, lawyers who include in their advertising recovery amounts for clients in the past and cumulative recovery numbers for all time. Doesn’t all of this marketing infer that the lawyer’s skill makes some difference in the outcome?
I’m not criticizing the judiciary for being hands on, hands off, experienced, or even inexperienced. I have seen trials where judges are ultra-protective of jurors and the civil jury process while others essentially let everything go, allowing the attorneys to build into the case their own error should they dare to cross those lines. But, I do argue that all of these types of judicial conduct, just by the fact they are taking one position or another, lend credence to the point that the lawyer’s skill level does affect outcome.
At the very least, a lawyers negotiating skill can affect settlement terms and amounts. Many cases that result in litigation, began as a client’s failure to engage lawyers at the outset of a transaction or deal. Maybe the contract writing and negotiation skills lawyers have at the time of the transaction will impact the ultimate result. I would ask our ADR professionals their thoughts on the issue but I am betting that they hear too many lawyer value added arguments and war stories intended to influence settlements to argue the point. It seems a common occurrence to overhear a lawyer talk about making something out of nothing or holding the verdict amount down despite everything being against them. Lawyers now even attach their strategies to a successful mentor in hopes of elevating their position based on that mentor’s achievements.
Surely all of this talk is not baseless chest pounding. I simply can’t think of a scenario where the lawyer’s skill level does not impact the outcome. Some skill is certainly required in making and arguing evidentiary objections, presenting testimony, and obtaining a set of jury instructions. I can’t imagine that any judge would allow the use of a defective set of jury instructions; however, many cases I see reversed on appeal are done so on the basis of jury instructions given at trial. Maybe all of this is just ego speak? After all, most clients already know, if you have dragons, you need to use them. But it does not hurt to also have facts, law, and a lawyer who knows their case.

End Notes:
1. Joel Cohen, Richard A. Posner, Jed S. Rakoff; Do Court Room Lawyers Make a Difference?(July 31, 2017), http://www.slate.com/articles/news_and_politics/jurisprudence/2017/07/posner_and_rakoff_debate_whether_courtroom_lawyers_ever_make_a_difference.html
2. Cohen, J. Blindfolds Off: Judges on How They Decide. Chicago: (2014)

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